I’ve written a number of times about the case brought by Olivia Pratten. She brought a law suit in British Columbia alleging that differential treatment for adopted children (who have a right to information about their original parents in Canada) and those who are donor conceived (who do not) violated the Canadian Constitution. The trial judge has now issued a ruling in her favor. The province (that’s British Columbia) has 18 months to come up with a system to fix the constitutional defect. This is the first case of its kind I’m aware of.

I have not had a chance to read the decision and I am in meetings all day today, so for the moment I rely only on the news summary. Here’s the take-away:

The judge noted that anonymous donation remains the choice of many would-be parents who want control over what their child knows, when they know and who might be involved in their child’s life.

“But, based on the evidence in this case, I have concluded that anonymity is not in the child’s best interests,” Adair wrote.

“Strong and positive relationships with social parents do not satisfy or eliminate the desire and need of donor offspring to know where they came from, and their need to know their origins is just as powerful and real as those of adoptees.”

I look forward to reading the opinion, but for the moment I would note the careful line Pratten herself has drawn.

“I’m not related to my dad but he’s my dad,” she said. “This is a victory for them as well because finally what they were saying 20 years ago has been heard and recognized as being accurate.”

I think that is pretty clear, but just in case, I take it to mean that she does not invalidate the relationship she has with the man who raised her. And I suppose (though this may just be me) that she means she is not genetically related to her dad.

I’ll get a copy of the opinion as I can and I’ll get back to you with more.

Olivia’s parents were with her in the court room fully backing her case and yes, she considers her dad to be her dad.

I personally do not understand why adoptees and donor concieved continue to have that question brought up time, after time, after time. If we did not consider our parents to be our parents we would not give them that title.

Thanks for adding that. I think the issue arises because some people who advocate for the importance of DNA take the position that only those with the genetic link are “real” parents. That position makes some of us (me included) unhappy. So I think it is important to distinguish between those who take Olivia Pratten’s view and those who take what I would call the more extreme position.

I’ve known Olivia and her mother personally since she was 11 years old. I can attest to her need to know her full identity and her parents’ support of that need. They have done so for more than twenty years. She is not concerned about the legal status of either of her fathers. She acknowledges and respects her dad as her legal parent and wants to acknowledge her original father as also part of her reality. Both should be “real” to her. She is only concerned that knowledge of her full identity should be considered a legal and ethical right, as it is for adopted people in British Columbia and in thirteen other countries and provinces. The issue is not about legal parentage, but whether any state actor, such as adoption agencies or state licensed fertility clinics can assume a non-governmental authority to deny anyone, through agreements in which they have no say, the identity interests of people. I say people and not children since this has nothing to do with a child’s status under the parental control as a minor but the status of the autonomous adults they will become.

I can speak for hundreds of donor conceived people as well as thousands of adopted people with respect to the issue of DNA importance. Please do not assume that we take “the position that only those with the genetic link are “real” parents”. I have never heard that argument expressed that way from donor conceived adults or adopted people. When we insist that DNA is important we are not making a claim that our parents do not have any meaning to us. They have that in their legal status as well as in our relationships with them. We are simply saying that DNA and our actual biological relationships are deep interests to our sense of a complete identity. This extends to our ancestors as well as our children and posterity. No one, including adopting parents, ART parents, original parents, agencies, doctors, clinics, or governmental actors should have the power to deny us this fundamental human right.

This has nothing to do with the legal struggle over parental power. It has nothing to do with financial obligations for support. Our legal parents have that. Those of us who have had our genetic kinship denied to us only want to know what that kinship is and to have the right to request connections, a chance to establish a relationship, if possible. We recognize the rights of our original parents to determine the degree of contact but do not accept that they have a right to deny us the knowledge of who they are. Everyone has a moral obligation to the children they create. A biological father and mother have a personal genetic and genealogical history that they share with their children. They have an ethical responsibility to share that property of identity with their children.

I do not mean to attribute the DNA=legal parent argument to the donor conceived community particularly. However, the DNA=legal parent argument is certainly out there and it does concern me. I worry sometimes that the concerns of those who are donor-conceived can and are used by those who advance that argument.

Perhaps this is partly because people (me included) aren’t always careful enough in using language to distinguish between claims about legal parentage and those about other entitlment to the “parent” title. (This is one of the reasons I try to be careful about language, but I know I fail to be consistent, too.) Perhaps it is because people sometimes tend to paint with a broad brush and so erase the complexity of the issues here.

It’s also true that in many places the law creates problems for people who have used third-party gametes from an identified person. As long as the law insists that the gamete provider will have legal parental rights, people who use third-party gametes will be reluctant to have those gametes come from an indentified person. You could also look at this from a different angle–if you live in a jurisdiction where a known provider has legal parental rights, you’re not going to be enthusiastic about using a known provider. https://julieshapiro.wordpress.com/2010/01/24/why-lesbians-might-think-before-using-a-known-donor/

The solution to me is obvious: create laws that protect the person who has no initial say in the matter. DI adults are not concerned about the legal parentage issue. We only want a clear right to know our heritage. We can have two legal mothers as well as a legitimate father who is not legally obligated for support and has given up his right to assume a parental role, as long as his obligation to be identified to his progeny is secured, without duties or rights beyond that. We could have one legal mother and one legal father as well as a legitimate genetic father whose reality and importance to the person conceived by him is recognized.

We could also have an open system much like open adoption, where the child has contact with the genetic parent/s while growing up. So far, this has shown to be working out well, with the usual minor conflicts. If it is open, then there has to be a clear legislative framework that establishes strict definitons of rights and duties. This also requires that ART controls be transferred out of the hands of private clinics into public agencies with governmental oversight. I know that makes people nervous but the consequences of continuing a privately controlled have been devastating for those of us who have no recourse for our grievances. Open adoption is working well and serves as an excellent model. In fact, the past mistakes of the closed adoption systems should have taught us multiple lessons about making ART ethical.

I think laws that clearly defined the various legal roles/rights/obligations of people are extremely important. One problem with the present system is that the law varies place to place quite dramatically. This can only lead to unclarity and misunderstanding.

That said, the process of shaping law isn’t an easy one. There are all sorts of competing forces at work in any legislature. (I also think those who articulate the position of the donor-conceived might not all agree with you, but I could be wrong about that. Maybe it is just people who take a different position than yours and then try to enlist the support of the donor conceived.) Anyway, my point here is that while the solution might be obvious, getting there isn’t easy.

Here’s one of the harder bits. Suppose we agree about the right of the donor-conceived to ID those who provide the genetic material. (Do we, by the way, agree about when that happens?) If we also agree that the providers are not (necessarily?) legal parents, then who are the legal parents? In other words, if you don’t use genetics, what do you use? This is the essence of my ongoing efforts here.

His roll of father for her is separate than the roll of father of her. Thank God he gets it and is not threatened by it. Of is to come from, belong to, originate, it comes before and for comes after, its granted, assigned, given, earned, whatever.

I think I might be able to guess what that first sentence means, but I’m not sure. There’s three possible things one could talk about here. The man who provided the DNA–sometimes called the genetic father or maybe the biological father. The man who played the role of father as a social matter–that would be the social father. And then, the thing I come back to, the legal father. In this case there’s no doubt that the social father and the biological father (and I use the language warily) are different men. The way we set things up, only one can be the legal father. (I believe this is true in Canada as well.) In this case, the legal father is the social father. And that satisfies me. The DNA guy is obviously of interest to Pratten and all that, but whatever we call him, the question I come back to is whether he gets a set of legal rights/obligations and, if so, whether they are those rights/obligations we generally assign to parents. In this case he does not have those rights/obligations.

My understanding is that in the US the court functions differently.
Whether or not a law is in the best interests of children is for the legislature to determine, it is not the court’s job.
The court determines whether it is constitutional.
Would you say that is accurate Julie?

Here’s the thing about a test that requires determination of the best interests of the child. If you do that at an individual level. you’re going to get very widely varying results. What is best for a child, after all? Reasonable people differ on this. And all children are different, as are all the adults around them.

The primary place you see BIC crop up is in a custody fight between parents. In such a case, judge’s are typically instructed to do what is best for that specific child. It’s an individvualized determination. But that is only if it is a fight between legal parents. If it is a fight between a legal parent and someone who does not have legal parental rights, then the legal parent will win unless there is something quite wrong with that person. And this is because in general we assume that parents know what is best for their children and that they have a better grasp of that then does a judge.

So that’s the role BIC plays on an individual case level–it’s a decision made and reviewed by judges. But BIC can play a role in larger policy determinations, too. To be clear, this is not on an individual level. So, for example, it obviously matters who gets to be a legal parent (see that paragraph just above about how legal parents win over others or a zillion places in this blog.) Society has to make rules about who gets recognized as a legal parent. These are laws and could be crafted by a legislature or by courts. There are, as this blog has endlessly discussed, many ways you can identify legal parents. You can say it’s all in DNA–those whose DNA matches are legal parents. You can say a woman who gives birth is a legal parent. You can say the person married to her is a legal parent. You can mix and match. How’s a legislature or a court to decide what set of rules to use?

The choice of a rule is justified by underlying policies usually. And one policy you’ll see referred to here is the best interests of the child. So you might say “we as a society care about the well-being of children so we will choose parentage rules that advance those interests.” You might also consider the interests of adults or other interests for that matter. So then you’d say “what rules for parentage best serve children generally.” I say (and have said) that recognizing de facto parents as legal parents generally serves the well-being of children and so we should use that rule. Someone else might (and some do) disagree and say picking the DNA people serves the well-being of children better. Somehow each place makes its choice.

And so you can see that BIC plays at both levels–at an individual level in a specific case about a particular child, but also in the global level as we choose the rules that will govern individual cases.

Beneath all that lies the Constitution. Some options are off the table because of our Constitution. So a person might say “I think the general rule should be that mothers are preferred because women are better with kids” and we’d say–Cannot make generalizations like that–violates the constitution. You could make that argument–that a particular rule violates the constitution–in court or in the legislature. Sometimes legislatures refuse to enact laws because they think they are unconstitutional. But if they do, you can always ask a court to have a look.

unfortunately I did not understand all of it… I was a bit taken aback by the mixture of a BIC argument and a constitutionality argument.
I thought that once a law has been passed by the legislature, a court does not get to determine whether it is in the best interests or not. Would you say that were this to occur in the US, the judge would have been overstepping his/her bounds?

In the US (I think with the exception of Louisiana) judges have the power to make law where the legislature hasn’t acted. If the legislature does act, then you’re right about what follows–the law enacted by legislatures controls decision making.

For example, very few states have enacted laws that deal with the rights of unmarried couples. Yet there are lots and lots of unmarried couples around these days. Suppose two people live together for twenty years and then split up. What happens to property they acquired while they lived together? Suppose they acted pretty much like a married couple, whatever that means, but just never got married? Imagine no law enacted by the legislature says anything about what to do.

In a number of states, courts have faced this question and have tried to come up with a solution. So one state might treat them like business partners, in which case maybe some protected interest in common property. Another state may decide to treat them as sort of quasi married, at least where one person has depended on the other and property has been amassed. Yet another state might look to see if they had any sort of explicit or even tacit agreement. The judges who have to decide the cases that come before them make the law–they create legal rules. They do so based on arguments presented to them about what interests should be most important, what laws already exist and so on.

In a perfect world, maybe the legislature would choose the approach. But the truth is, most state legislatures don’t have time/inclination to deal with this sort of question. So it falls to the courts. The judges who make up the law here are not overstepping their role at all. Whatever decision they make can be displaced any time the legislature chooses to make some rules itself. The judges just fill in gaps in the mean time.

Given our political structure, there are countless areas–not just family law–where the legislature doesn’t act. So we have a lot of judge made law. It actually seems to me that it is particularly prevalent in family law and there might be a couple of reasons for that. First, since family law has become very political lately it’s hard to construct legislative majoirties for lots of things. At the very least, it takes a lot of time/effort, and legislators have limited time/effort. Family law is often sort of low status/low priority. So maybe it doesn’t seem as important as clarifying the rights of contract or property stuff.

In any even, the practice I’ve described here is found in common-law countries around the world, including those places that were colonies of England, which is where we got this. It contrasts to a civil law tradition, found in most of the rest of Europe, including France, hence the exception for Louisiana. Civil law countries rely much more heavily on legislative enactments and have political systems that make it easier for legislatures to act. (Not so much of the checks and balances stuff that we have.)

Again, more than you wanted to know and possibly too far afield. But there you are.

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About the Blog

Family law is shaped by and helps shape our worlds. It changes all the time, propelled by the diversity of our families and our experiences. It matters (and should matter) to many of us. Whether or not we think about the law, we are subject to it. That's why I started this blog.

Many topics in family law fascinate me. I hope to create a forum for intelligent and sustained discussion of some of the more compelling family law issues. I have started here with questions of parentage--who are the parents of a child. It's not as simple as it seems. But it is a terribly important one. By building slowly, case by case, story by story, I hope to slowly develop a rich and layered understanding of what it means to be a parent, one that perhaps, some day, the law can learn from.

My hope is that many of you will join me in the project and that the whole will be greater than the sum of the parts.